Of the sanctioned strength of 31, 27 judges currently serve on the Supreme Court. Of these 27 judges, 24 have previously been judges of one or more High Courts in the country. While we are aware of the nature and duration of their judicial positions before elevation to the Supreme Court, we know little about their professional life before becoming judges. Amongst other questions, what was the professional engagement of these justices before they were appointed as judges? In this post, I wish to survey the past professional experience of these judges and pay specific attention to whether Supreme Court justices have previously been appointed as government pleaders, advocates or standing counsel for the State or its instrumentalities

I identify a judge as a government advocate or standing counsel, if a judge has been appointed to represent either the Union or State Government, Municipal Bodies, Corporations and Companies that have government control and/or involvement.
For the purposes of identifying judges who have previously been appointed as government pleaders or advocates, I rely primarily on the profile of judges as carried and maintained on the website of the Supreme Court. However, in some cases the profiles of certain judges on the Supreme Court website remained silent on whether they were government advocates, while the profile on the website of High Court on which they served did make reference to such appointment. In these cases, I have relied on the profiles as carried on the website of the respective High Courts.

Relying on the profiles of the judges on the website of the Supreme Court or the High Court have certain drawbacks, two of which merit immediate mention. First, if the profile of a particular judge is not accurate and does not fully describe the various professional positions he/she was appointed to, there would be a cascading inaccuracy in the discussion to follow. For the purposes of this post, where a profile of a Judge does not explicitly make reference to being appointed as a government advocate or standing counsel, I have counted these judges as not being so and assumed that they never held any such position. The other limitation of relying on the profiles of judges on the Supreme Court website is that they do not uniformly list the duration for which they held such positions as government advocates or standing counsel. One is therefore not able to accurately assess the length of their appointment and the consequent involvement in representing the State.

From my reading of the profiles of the Supreme Court judges, here is what I found: Of the 27 judges, the profiles of 19 justices revealed that they had previously represented the State. While the profile of the 8 remaining judges were silent on this issue, forcing me to conclude that they did not represent the State or its instrumentalities prior to being appointed as judges. This exercise reveals that at a minimum, 70% of the judges on the Supreme Court have previously represented the Government and would meet my definition of a government advocate or a standing counsel. A tabular summary of the information on the Supreme Court and High Court website(s) are as follows:

This information is helpful for a variety of reasons. First, it helps us gain some insight into the professional background of Judges, before they assumed judicial positions. It opens our eyes to the kinds of practice areas these judges were exposed to and their involvement in representing the Sates interests in courts and judicial fora. I would however caution against reading this information as pointing to some sort of government bias in Supreme Court judges. I think merely because these judges once represented the State, should not automatically mean that they are ideologically predisposed in favor of the State and/or its conduct.

What we should read this information as, is having the potential to throw light on the past professional conduct, learning and experience of more than half of the Supreme Court judges. While working as lawyers for the government, these judges necessarily would have worked closely with law officers and government officials of various designations and in different positions of power. They would have been briefed by such officials, attended meetings within such organizations and been closely associated with the departments/organizations they were called upon to represent. Such an association with government servants and officials would have exposed them to the inner working of the government and/or its instrumentalities, the manner in which decisions are made within such bodies and areas of contentious government policy/action that are the subject matter of challenge. Those judges that were previously special public prosecutors (Justice UU Lalit and Justice Mohan Shantanagoudar) or standing counsel for revenue departments (Justice RK Agarwal) were involved in essential state functions (Crime and Revenue) and were therefore intimately associated with the conduct and interests of the State. More importantly, through the process of such representation, these judges would have been exposed to and understood the institutional strengths and weaknesses of the agencies/departments they were called upon to defend. In this learning, it would be natural to assume that these judges also became familiar with arguments canvassed in defense of the State: exclusion of the jurisdiction of constitutional courts where an alternative remedy exists, issues of standing and whether a cause of action accrues to the petitioner or claimant, whether the impugned action is in the realm of government policy (and therefore not strictly subject to constitutional challenge) and whether the appropriate government department/bodies have been impleaded in the concerned litigation.

A natural question to ask in this context would be: what happens to this professional learning when government advocates and standing counsel assume judicial office? Do these positions of law and arguments which were previously routinely invoked, form part of their fundamental understanding of the law and judicial process or is it appropriately contextualized as a professional strategy employed in the defense of state action. Does their professional experience form the backbone of their judicial outlook or are these judges able to adopt an understanding and practice of the law that is detached from their prior professional experience? These are difficult questions and I frankly do not have any answers. But I do think that these questions form preliminary concerns in meaningfully trying to understand judicial behavior within our Supreme Court.

In fact, this data begs the question of whether judges who have previously represented the State are likely to be biased against it? I think it is also plausible to foresee a situation where a judge who previously represented and defended the State, is likely to have been exposed to and called upon to defend various inefficiencies in state functioning. After all, much of the litigation before constitutional courts is concerned with the wrongdoing or failure in the conduct of the State. Is a judge who was previously a public prosecutor likely to be harsher on the prosecution given his/her first-hand knowledge on the state of affairs within the police and investigation agencies in the country. Similarly, would a judge who has represented the revenue department be more likely to sympathize with an assesse given his/her understanding of the manner in which tax and revenue authorities are committed to revenue collection, irrespective of legal sanction for such levy.

The other reason why this information is interesting, is because it helps contextualize the manner in which judicial appointments to the Supreme Court and High Court are made. For some time now, there has been a widely held belief that in order to be appointed as a Judge to the Higher Judiciary, one must have represented the State or its instrumentalities in some capacity. There are immediate benefits of being appointed as a government advocate/ standing counsel for persons interested in judicial office: one is exposed to various facets of public and administrative law and one is able to closely observe the working of other constitutional actors. Not to mention that the sheer volume of work entrusted to government advocates and standing counsel guarantees repeated appearances in court, thereby facilitating observation and assessment of their performance and professional conduct by sitting judges and consequent recommendation to be appointed to a judicial position. This data can then both explain and guide the career choices of persons interested in judicial positions.

In our discussion concerning the appointment of judges, commentators of the Court have argued that there must be some mechanism to assess and gauge the judicial philosophy of the judges being appointed. Such an assessment is virtually impossible without first asking what these judges did before they became judges. What was the nature of their professional experience and in what manner and to what extent has this impacted their judicial thinking. Without exploring their professional past, there is no meaningful manner in which we can assess and investigate the judicial thinking inside our Supreme Court.

[Note – The description of the prior professional experience has been copied from the information carried on the Supreme Court and High Court website(s) and has only been edited for minor language changes].